In the instant case, of course, there is no suggestion that Peters was not in default under its loan restructuring agreement with Fleet. Finally, Peters relies on Sheffield Progressive, Inc. v. Kingston Tool Co., 405 N.E.2d 985 (Mass.App.Ct. 1980), which upheld a denial of a motion to dismiss a "collusive foreclosure" claim that collateral worth over $3 million had been sold in a private foreclosure sale for only $879,159, the full amount of the secured debt. Id. at 987.

In support of his argument that under section 9.504(d) a private foreclosure sale may be nullified because of the purchaser's lack of good faith alone, Thomas cites two cases: In re Four Star Music Co., 2 B.R. 454, 29 U.C.C.Rep. 343 (Bkrtcy.M.D.Tenn. 1979); Sheffield Progressive, Inc. v. Kingston Tool Co., 10 Mass. App. 47, 405 N.E.2d 985, 29 U.C.C.Rep. 292 (1980). Neither one supports Thomas' proposition.

Because the transaction involved a foreclosure by BayBank on Continental's assets, the plaintiffs would also have to show that Continental colluded with BayBank in effecting the transfer. See Sheffield Progressive, Inc. v. Kingston Tool Co., 10 Mass. App. Ct. 47, 49, 405 N.E.2d 985 (1980). A transaction could fit within this category even if it was technically insolvent before the transaction if the sale was without fair consideration and had the effect of further diminishing the assets available to creditors.

1994); Bennett v. Genoa Ag Ctr., Inc. (In re Bennett ), 154 B.R. 140, 147 (Bankr.N.D.N.Y.1992); Consumers Credit Union v. Widett (In re Health Gourmet, Inc.), 29 B.R. 673, 676 (Bankr.D.Mass.1983); Sheffield Progressive, Inc. v. Kingston Tool Co., 10 Mass. App. Ct. 47, 405 N.E.2d 985, 987 (1980); accord, analysis in United States v. Shepherd, 834 F. Supp. 175 (N.D.Tex.1993), though that decision was later reversed for lack of federal jurisdiction to overturn a state forfeiture, 23 F.3d 923 (5th Cir.1994)).Mussetter v. Lyke, 10 F. Supp. 2d 944, 959 (N.D. Ill. 1998), aff'd, 202 F.3d 274 (7th Cir. 1999)(applying California Fraudulent Transfer Act to collusive foreclosure sale).

See Steel Co. v. Morgan Marshall Indus., Inc., 278 Ill.App.3d 241, 250–252, 214 Ill.Dec. 1029, 662 N.E.2d 595 (1996) (although no dispute that art. 9 of Uniform Commercial Code was complied with, genuine issue of material fact remained whether transfers made with actual intent to defraud). Cf. Sheffield Progressive, Inc. v. Kingston Tool Co., 10 Mass.App.Ct. 47, 50, 405 N.E.2d 985 (1980), quoting 1B Coogan, Hogan, & Vagts, Secured Transactions Under the Uniform Commercial Code § 13.07(1), at 1381 (1980) (“Clearly, article 9 does not replace the Uniform Fraudulent Conveyance Act”). Cases decided before the enactment of the UFTA in Massachusetts have stated that when a debtor has paid one creditor over another, even when the payment comprised substantially all of the debtor's assets, this fact by itself is insufficient to establish an intent to hinder, delay, or defraud.

The debtor has the right under section 9-507(1) to recover for "any loss caused by a failure to comply" with section 9-504's requirement that the disposition of the collateral be made in a commercially reasonable manner. ( United States v. Conrad Publishing Co. (8th Cir. 1978), 589 F.2d 949, 955; Sheffield Progressive, Inc. v. Kingston Tool Co. (Mass. Ct. App. 1980), 405 N.E.2d 985, 988.) The debtor may recover monetary damages.

Nader v. Citron, 372 Mass. 96, 98 (1977). Sheffield Progressive, Inc. v. Kingston Tool Co., 10 Mass. App. Ct. 47, 48 (1980). In determining whether the husband's complaint states a valid claim for modification of the divorce judgment under G.L.c. 208, § 37, we must consider whether the facts as alleged indicate a material change of circumstances in the needs or resources of the parties since the entry of the earlier judgment.

Accordingly, the judgment under rule 54(b) is to be vacated so that within thirty days after the receipt in the Superior Court of the rescript from this court (a time limit which should be respected except for substantial cause shown), Shaw may seek leave to file an amended or substitute complaint. See Nader v. Citron, 372 Mass. 96, 104 (1977); Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 100-101 (1979); Sheffield Progressive, Inc. v. Kingston Tool Co., 10 Mass. App. Ct. 47, 48-56 (1980). Compare Bass River Lobsters, Inc. v. Smith, 7 Mass. App. Ct. 197, 198-202 (1979).

All inferences are to be taken in favor of the plaintiff. Sheffield Progressive, Inc. v. Kingston Tool Co., Inc., 10 Mass. App. Ct. 47, 48 (1980). His complaint centers on a claim for damages for the amount of the check drawn to him and his client.

All inferences are to be taken in favor of the plaintiff. Sheffield Progressive, Inc. v. KingstonTool Co.. Inc., 10 Mass. App. Ct. 47, 48 (1980). The factual allegations of the complaint, as supplemented by the motion judge's voluntary report, present the following scenario: